Citation NR: 9635866
Decision Date: 12/16/96 Archive Date: 12/24/96
DOCKET NO. 91-44 424 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Whether the appellant may be recognized as the veteran’s
surviving spouse for Department of Veterans Affairs (VA)
benefits.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARINGS ON APPEAL
Appellant, her daughter and her mother
ATTORNEY FOR THE BOARD
A. A. Booher, Counsel
INTRODUCTION
The veteran had active service from August 1942 to July 1946.
According to the death certificate, he was found to be dead
on September [redacted], 1984 due to a self-inflicted contact
through-and-through gunshot wound to the head.
This appeal was from a decision by the VA Regional Office
(RO) in Houston, in June 1989. The appellant provided
testimony at a personal hearing held before a Hearing Officer
at the RO in August 1990, a transcript of which is of record
[Tr(1)]. The appellant and her daughter and mother
subsequently provided testimony before Members of the Board
at the RO in July 1991, at which time her representative was
a private attorney. A transcript is of record [Tr(2)]. She
has since assigned representation to the Disabled American
Veterans.
CONTENTIONS OF APPELLANT ON APPEAL
In substance, based on several factual alternatives which
will be discussed further in the context of other evidence
below, the appellant argues that she and the veteran were
married at the time of his death, i.e., they either were
never legally divorced, or that they had a common law
relationship after a final divorce; and in either instance,
she should be entitled to benefits as his surviving spouse.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the appellant’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence weighs against the appellant’s claim.
FINDINGS OF FACT
1. Adequate evidence is in the file for an equitable
disposition of the appellant’s current claim.
2. The appellant and the veteran’s divorce was finalized on
May [redacted], 1973.
3. The veteran died in September 1984.
4. From 1973 to 1980, it is not shown by evidence of high
probative value that the veteran and the appellant had a
valid common law marriage.
4. From 1980 until his death, credible evidence sustains
that the veteran had virtually no contact with the appellant;
that after 1980 he lived continuously with and was married to
another woman, that he was not incapable of deliberate
decision-making prior to his suicide; and that he undertook
considerable effort to specifically protect the legal and
financial interests of others, including his then wife, E,
and his three children by D.
CONCLUSION OF LAW
The appellant may not be recognized as the veteran’s
surviving spouse for VA purposes, and the applicable criteria
for death benefits have not been met. 38 U.S.C.A. §§ 101(3),
101(31), 103(a), 1541, 5107 (West 1991 & Supp. 1995); 38
C.F.R. §§ 3.1(j), 3.52, 3.53 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Extensive documentary evidence is of record including
affidavits and other data. The appellant has provided
testimony on two occasions, as have others, and the case was
remanded by the Board for additional development of the
evidence to include a field investigation which has been
conducted to the extent feasible. The death file but not the
veteran’s claims file is available; however, it is not shown
that pertinent records are missing as a result, and in fact,
a relevant report of a change of beneficiary from 1984 is of
record. Although there was correspondence in April 1994 from
the appellant’s representative concerning documents filed in
a claim by the appellant against the executor of the
veteran’s estate pending before a Probate Court in Texas, and
on which there was prior evidence of record, no further
evidence has been forthcoming in that regard. Moreover, the
appellant has not indicated that there is any substantive
documentation which is not now of record which is otherwise
obtainable, and a review of the evidence of record does not
confirm such evidence may be available. The Board finds that
adequate development of the evidence has been undertaken
pursuant to regulatory and judicial mandates.
Criteria
38 U.S.C.A. § 1541 (West 1991) provides for the payment of
death pension to a "surviving spouse" of a veteran who meets
various eligibility criteria. 38 U.S.C.A. § 101(3) (West
1991) provides, in pertinent part:
The term "surviving spouse" means...a
person of the opposite sex who was the
spouse of a veteran at the time of the
veteran's death, and who lived with the
veteran continuously from the date of
marriage to the date of the veteran's
death (except where there was a
separation which was due to the
misconduct of, or procured by, the
veteran without the fault of the spouse)
and who has not remarried or (in cases
not involving remarriage) has not since
the death of the veteran...lived with
another person and held ...herself out
openly to the public to be the spouse of
such other person.
38 U.S.C.A. § 101(31) (West 1991) provides: "The term
'spouse' means a person of the opposite sex who is a wife or
husband." 38 C.F.R. § 3.50(c) (1995) provides, in pertinent
part: “Spouse and surviving spouse. Spouse means a person
of the opposite sex who is a wife or husband and the term
surviving spouse means a person of the opposite sex who is a
widow or widower provided the marriage meets the requirements
of § 3.1(j)..."
38 C.F.R. § 3.50(b) (1995) provides, in pertinent part:
“Widow. Except as provided in § 3.52, widow means a person
whose marriage to the veteran meets the requirements of §
3.1(j) and who was the lawful spouse of the veteran at the
time of the veteran's death and: (1) Who lived with the
veteran continuously from the date of marriage to the date of
the veteran's death except where there was a separation which
was due to the misconduct of, or procured by, the veteran
without the fault of the spouse...”
38 C.F.R. § 3.1(j) (1993) provides: "Marriage means a
marriage valid under the law of the place where the parties
resided at the time of marriage, or the law of the place
where the parties resided when the right to benefits
accrued."
38 U.S.C.A. § 103(a) (West 1991) provides:
Whenever, in the consideration of any
claim filed by a person as the widow or
widower of a veteran for gratuitous death
benefits under laws administered by the
Secretary, it is established by evidence
satisfactory to the Secretary that such
person, without knowledge of any legal
impediment, entered into a marriage with
such veteran which but for a legal
impediment, would have been valid, and
thereafter cohabited with the veteran for
one year or more immediately before the
veteran's death, or for any period of
time if a child was born of a purported
marriage or was born to them before such
marriage, the purported marriage shall be
deemed to be a valid marriage, but only
if no claim has been filed by a legal
widow...of such veteran who is found to
be entitled to such benefits. No
duplicate payments shall be made by
virtue of this subsection.
38 C.F.R. § 3.52 (1995) implements 38 U.S.C. § 103(a). This
regulation provides:
Marriages deemed valid: Where an
attempted marriage of a claimant to the
veteran was invalid by reason of a legal
impediment, the marriage will
nevertheless be deemed valid if:
(a) The marriage occurred 1 year or more
before the veteran died or existed for
any period of time if a child was born of
the purported marriage or was born to
them before such marriage (see §
3.54(d)), and
(b) The claimant entered into the
marriage without knowledge of the
impediment, and
(c) The claimant cohabited with the
veteran continuously from the date of
marriage to the date of his or her death
as outlined in § 3.53, and
(d) No claim has been filed by a legal
surviving spouse who has been found
entitled to gratuitous death benefits
other than accrued monthly benefits
covering a period prior to the veteran's
death. (Authority: 38 U.S.C. 103(a))
38 C.F.R. § 3.53 (1993), as amended at 59 Fed. Reg. 32659
(1994), provides:
Continuous cohabitation.
(a) General. The requirement that there
must be continuous cohabitation from the
date of marriage to the date of death of
the veteran will be considered as having
been met when the evidence shows that any
separation was due to the misconduct of,
or procured by, the veteran without the
fault of the surviving spouse. Temporary
separations which ordinarily occur,
including those caused for the time being
through fault of either party, will not
break the continuity of the cohabitation.
(b) Findings of fact. The statement of
the surviving spouse as to the reason for
the separation will be accepted in the
absence of contradictory information. If
the evidence establishes that the
separation was by mutual consent and that
the parties lived apart for purposes of
convenience, health, business, or any
other reason which did not show an intent
on the part of the surviving spouse to
desert the veteran, the continuity of the
cohabitation will not be considered as
having been broken. State laws will not
control in determining questions of
desertion; however, due weight will be
given to findings of fact in court
decisions made during the life of the
veteran on issues subsequently involved
in the application of this section.
The United States Court of Veterans’ Appeals (the Court) has
also held with specific regard to pertinent cases. In
Gregory v. Brown, 5 Vet.App. 108, 112 (1993), the Court
stated that:
Title 38, U.S.C.A. § 101(3) and 38 C.F.R.
§ 3.50(b)(1) set forth a two-part test to determine
whether a spouse will be deemed to have
continuously cohabited with the veteran when there
has been a separation. The spouse must not only be
free of fault at the time of the separation, but it
must be found that the separation "was due to the
misconduct of, or procured by, the veteran."
The Court further stated in Gregory at 112 that:
The language of [38 U.S.C.A. §§] 101(3) and []
3.50(b)(1) does not indicate that the without-fault
requirement is a continuing one. Rather, under
this language, fault or the absence of fault is to
be determined based on an analysis of conduct at
the time of the separation. Certain conduct
subsequent to the time of separation may be
relevant in an appropriate case with respect to the
question of fault at the time of separation, but
the mere acts of seeking divorce and failing to
reconcile are not in and of themselves relevant to
such question, and, standing alone, do not
constitute evidence of fault at the time of
separation. Certainly, if a spouse has been
physically and emotionally abused and separates
from the abuser, the abused spouse's acts of
initiating a divorce and refusing to reconcile
would not be competent evidence to demonstrate
fault on the part of the abused spouse at the time
of the separation.
The Court further held in Sanders v. Brown, 6 Vet.App. 17, 19
(1993) that:
In order to establish entitlement to VA death
pension benefits as a "surviving spouse" of a
veteran, it is required that the claimant be the
veteran's spouse at the time of death. 38 U.S.C.A.
§ 101(3) (West 1991). The determination whether
appellant was the veteran's lawful spouse for the
purposes of receiving death benefits depends upon
whether she had an existing valid marriage to the
veteran at the time of his death. Pursuant to 38
C.F.R. § 3.1(j) (1992), the validity of the
marriage is to be determined by applying "the law
of the place where the parties resided at the time
of marriage, or the law of the place where the
parties resided when the right to benefits
accrued." While common sense would seem to dictate
that the former test would be applicable where the
question was the validity of the inception of the
marriage, and the latter would apply where the
question was the validity of the termination of the
marriage, the regulation does not specifically so
state.
The Court has also held that it is the duty of the Board as
the factfinder to determine credibility of the testimony and
other lay evidence. See Culver v. Derwinski, 3 Vet.App. 292,
297 (1992).
Evidence
On the initial report of telephone contact following the
veteran’s death, a VA Form 27-8386, dated October 9, 1984,
the appellant inquired as to what evidence was required for
benefits to which there might be entitlement, citing the
veteran’s death in Houston, his receipt of Social Security
disability since 1980, noting his minor child, VCJ, citing
two different Houston addresses (citing the payee/veteran’s
address as [redacted] in Houston; and her address as [redacted]
[redacted], Houston). The appellant was described
thereon as the veteran’s ex-wife.
In June 1988, a VA Form 21-534 was received from the
appellant, showing her residence as on [redacted] Dr. in
Houston. Cited thereon was information with regard the
veteran’s marriages: date of marriage to “[redacted]”
was shown as “?”; date of their divorce w as shown as May [redacted],
1967. The date of the veteran’s marriage to [redacted]
was cited as “?”, and the veteran’s divorce from her was
listed as August [redacted], 1960. The veteran’s marriage to the
appellant, identified as “MCJ” was listed as November [redacted],
1969, and termination of their marriage was listed at the
date of his death, September [redacted], 1984. Information with
regard the appellant, MCJ, was that she had been married two
times (both times to the veteran), and that the first
marriage had been on May [redacted], 1964 and terminated by divorce
in May 1966; and the second marriage on November [redacted], 1969,
with termination of the marriage on the date of his death in
September 1984. The appellant checked that she had lived
continuously with the veteran from the date of their marriage
until his death, and that a child had been born of the
marriage, VCJ, in 1970. The appellant also submitted a copy
of marriage license showing their marriage in Austin on
November [redacted], 1969.
The death certificate showed that the veteran had been found
on September [redacted], 1984, having died from a contact gunshot
wound of the head, through and through, at [redacted] Dr. in
Houston. The certificate described the veteran as married,
and listed EF as his wife.
A copy of a divorce decree was submitted showing, in
pertinent part, that DJJ was granted a divorce from the
veteran on August [redacted], 1960; and that they had had three
children, NKJ, KEJ and RRJ.
A marriage license is of record showing that the appellant
and the veteran had been married on May [redacted], 1964 in Texas.
A certified copy of a judgment is of record showing that CEJ
had been granted a divorce from the veteran on May [redacted], 1967.
A VA Form 21-4138, filed by the appellant in December 1988,
stated that she had known of no legal impediment to her
marriage to the veteran on either occasion. Certificates
were received from Clerks in Bexar, Polk and Harris Counties
in Texas to the effect that no divorce record was found in
their jurisdictions from the period after 1973 to 1984 for
the veteran and the appellant.
A VA Form 29-336 is of record, signed by the veteran on
August 17, 1984, identifying his three daughters, NKP, RRV
and KER as equal beneficiaries of VA life insurance. In
subsequent correspondence, the appellant indicated that the
witness to that document, CPM, had been the attorney for her
husband’s brother, and that suits had been filed in that
regard. The appellant submitted a copy of a birth
certificate for VCJ showing herself as mother, and the
veteran as father; date of birth was June [redacted], 1970 in Austin.
The appellant was listed as the informant, and the marital
status of the parents was not designated.
On a VA Form 21-534, received in March 1989, the appellant
stated that the veteran had been married three times; that he
had been married to MC from May [redacted], 1964 to divorce in May
1966; that he had been married to CJ from “?” date and
divorced from her on May [redacted], 1967; and that he had been
married to MC from November [redacted], 1969 until his death on
September [redacted], 1984. She further described herself as having
been married only once, to the veteran, from November [redacted], 1969
until his death on September [redacted], 1984. On the form, she
checked that she had not lived with the veteran continuously
from the date of marriage until his death; that he had left
the household in about 1980, being ill with prostate and bone
cancer, to get his affairs in order anticipating death in a
short period of time.
The VARO requested additional clarifying information as to
the veteran’s relationship with M, the appellant, and other
related matters, from the veteran’s children and the attorney
who had witnessed his beneficiary form, CPM.
A statement was received from CPM in May 1989 to the effect
that with regard the appellant’s relationship from 1980 until
the veteran’s death, he was unaware that they had had a
relationship; that he had seen the veteran frequently during
that time, his file reflecting that he had seen him at least
six times, and his memory supporting seeing him probably at
least twice as many times as that documented figure; that he
had not been even aware that the appellant existed until
about August 20, 1984 when the veteran had brought him a
letter directed to the veteran’s then wife, EFJ, wherein the
appellant, M, had claimed child support benefits for her
daughter V. Mr. M specifically indicated that the veteran
had denied paternity of V, and denied having had any
relationship with the appellant, M, since the time of their
divorce. He further indicated that he had been given an
unsigned copy of a divorce decree at the time of the 1984
child support claim from the appellant, which he had in his
files. and which showed their divorce had been on May [redacted],
1973 in Bexar County, Texas. Mr. M further stated that he
had first met EF about May 13, 1980 when the veteran had
referred her to him for the handling of the estate of her
deceased husband. Mr. M stated that he had then prepared a
Will for E as well as a Prenuptial Agreement for her and the
veteran; and that he had been informed that the veteran and
E. had been married shortly thereafter and that she had
remained married to him until his death.
The appellant submitted a VA Form 21-4138 in May 1989, to the
effect that she did not recall ever having been asked whether
she cohabited with the veteran from their marriage until his
death; that she had married him in May 1964, divorced briefly
in 1966, and remarried in November 1969. She further stated
that she has submitted a valid record of her marriage to the
veteran and divorce decrees between the veteran and KAJ and
the veteran and DJ so that she and the veteran were free to
marry. She indicated that she had filed a lawsuits and in
that context, her attorney had attempted to get a deposition
from E, a woman in her 80’s, whom she was told was too senile
to make a statement, and who later died in February 1989.
She also denied that she had ever applied for insurance or
other benefits in 1984, and that the veteran’s file had
reportedly been destroyed in February 1989.
In another VA Form 21-4138, filed in May 1989, she indicated
that the veteran’s personal effects had remained with her and
that she expected to care for him during his terminal
illness, expecting to reconcile with him when his business
affairs were in order, but that his death occurred first.
She said that he had indicated to her that on his return from
Houston that they would continue to be a family. She
indicated that she had been in San Antonio at the time
completing her degree in interior design at St. Mary’s
University. On this and the other VA Form 21-4138 and on
other correspondence her address was shown as Memorial Mews
in Houston.
The veteran’s daughter, NJP, submitted a VA Form 21-4138 in
June 1989, indicating that she was sending a copy of the
veteran’s divorce from the appellant in 1973, as well as a
copy of his will dated in 1980; that the appellant and her
daughter, V, were not mentioned therein; that she knew of no
relationship between the appellant and the veteran in the
period from 1980 and his death; that it was her knowledge
that her father and the appellant had been divorced in 1973
and had had no further relationship; and that EFJ had been
married to her father from 1980 until his death in 1984.
Also of record is a certified copy of the veteran’s Will,
dated in August 1980, witnessed by two individuals and
notarized by attorney CPM. The document stated, in pertinent
part, that at the time thereof, the veteran was married to
EFJ; that he had three children by a prior marriage, named
NKP, KEH, and RRV to whom he left his estate in equal parts;
and that he appointed WWJ as his executor, with SWJ as
alternate executor.
The appellant, her mother and her daughter provided testimony
at a personal hearing held before a hearing officer at the RO
in August 1990. At that time, the appellant’s representative
argued that the appellant had been married to the veteran
first in 1964; that she had divorced him in May 1966; that he
declared bankruptcy in 1968; that they remarried in November
1969; had a daughter in June 1970; and again divorced in May
1973 although they immediately went back together again. It
was stated that during the first two marriages, they had
lived in Austin, San Antonio and Houston; that from 1973 to
1978, they lived in the [redacted] Apartments; and from 1978
to 1979, they lived at the [redacted] Apartments in San
Antonio, during which time the veteran had both a business
and an apartment in Houston; that during that time, he kept
his personal belongings in San Antonio and came to be there
on weekends in particular and was seen at their child’s
school, at the grocery, etc. Tr(1) at 1. It was argued that
they worked to make a living in both Houston and San Antonio;
that after the veteran developed cancer in 1978 or so, he
became moody and dropped out of sight, only for the appellant
to find that he had remarried in 1980 and killed himself 4
years later; she sued the estate for her part of the
property, and at the time of the hearing, the appellant’s
attorney indicated that it was conceivable that the suit
might be dismissed on procedural grounds without addressing
the validity of the common law relationship. Tr(1) at 2.
The appellant testified that between her first divorce and
second marriage to the veteran., he had also been married for
4 months to “[redacted]”. Tr(1) at 2; and that she had last been
divorced from him in 1973. Tr(1) at 2-3. The appellant
testified as to their working in different towns and his
coming to her location particularly but not exclusively on
holidays and weekends. Tr(1) at 3. She testified that she
had supported their daughter with her job in realty and
interior design until after his bankruptcy, but later he
contributed from his cooling business, and attended his
daughter’s school or activities until the time he
disappeared. Tr(1) at 4-5. The appellant described his
treatment of her and their daughter, i.e., greeting cards
(copies of some of which she entered into the record), credit
cards in her married name, etc. in 1975, 1976, 1979. Tr(1)
at 6. The appellant’s mother testified that during the last
year of the marriage between her daughter and the veteran,
1966, the appellant was the sole support of the family
through her travel agency business. Tr(1) at 6. The
appellant testified that after he developed cancer, he became
belligerent which had a definite impact on their marriage;
that after he had his second surgery, in the period from 1973
to 1978 or 1979 when he developed cancer, it was her intent
that they were married; but thereafter, he disappeared
without picking up his belongings. Tr(1) at 5-6. Her mother
stated that she thought that he had never felt at home when
he was away from them, although she never understood the bad
blood with his brother, she was glad when he was there with
them. Tr(1) at 7. Her mother said that it just felt like
they were still married, and she thought that they probably
had some friends who did not know that they were actually
divorced and had been surprised to find out that they were
divorced. Tr(1) at 8. The appellant’s daughter said that
her father had done a lot of things with her as a small
child, i.e., tennis, dancing, swimming, etc., and that he
would be with them and then leave for a week and then return
to both [redacted] and [redacted] Apartments. Tr(1) at 10. She
described his having been around one of her teachers who
lived in the neighborhood, and she recalled that he had been
introduced as her father. Tr(1) at 11. The appellant
testified that in 1979 or 1980, the veteran disappeared and
could not be found, that she needed money for support so she
called his family and was told that he had moved in with
another elderly woman, TG. Tr(1) at 11. Several affidavits
were submitted at the hearing to the effect that prior to
1979 or so, the appellant lived in San Antonio, that they
always had financial problems, the veteran lived in Houston
with his business, and that he came home Friday night and
left Sundays and did things with his family, etc. Copies of
some photos show the veteran and the appellant.
In September 1990, the Hearing Officer reiterated the
appellant’s argument that after their 1973 divorce, a common
law marriage developed; that the veteran’s subsequent
marriage to EF was invalid due to a legal impediment; and
that the separation in 1979-80 had not been the appellant’s
fault. The Hearing Officer’s decision identified the
evidence on both sides, and found that the inconsistencies
were far too great to sustain that a common law marriage had
developed.
In her Substantive Appeal, a VA Form 1-9 in August 1990, the
appellant reiterated the arguments at the hearing, and stated
that after he left in 1979-1980, the veteran’s cancer went
into remission for three years, during which time he did not
visit and did not respond to her letters. It was again noted
that a suit to settle the common law status had been filed
but “might” be dismissed without a decision on procedural
grounds.
The appellant and her daughter testified at a hearing before
a Travel Board at the RO in July 1991. The appellant
testified that the veteran and his “other wife”, using her
maiden name, had both been listed in telephone directories.
Tr(2) at 2. She testified that in the period from 1979, when
he became belligerent and disappeared until she found him in
1984, soon after which he was found to have killed himself,
she had had no contact with him. Tr(2) at 4. She indicated
that there was no contested claim because the “other wife”
had since died. Tr(2) at 5. She also indicated that she
could not recall whether she had called herself an “ex-wife”:
when she made inquiries in 1984 or otherwise, but she felt
that others had made contacts either on her behalf or their
own. Tr.(2) at 9. She testified that she did not have
personal photos or other documents because of a fire in her
home. Tr(2) at 11. She indicated that they had not had
joint bank accounts or any tax records, although she thought
that perhaps some credit cards identified her as the
veteran’s wife and that both their names may have been on the
[redacted] lease. Tr(2) at 12. She also submitted pages from
a telephone directory showing that the veteran’s name and the
name of EAG, EF’s former husband, were both shown for [redacted]
[redacted] Road.
The Board remanded the case in January 1992 for the
acquisition of the veteran’s claim’s folder (it was later
recertified as destroyed); and for a field investigation to
determine whether a valid common law marriage had been
established after the divorce in 1973, to include tax
statements, other documents, and interviews with
knowledgeable persons.
In a VA Form 21-4138, submitted in early 1992, the appellant
stated that a petition for a divorce between the appellant
and veteran had been filed on August 23, 1984; that it had
been put on microfiche; and that although a divorce decree
had been signed and filed prior to the divorce but “no one”
knew if it had actually become final before the veteran’s
death.
The request for a Field Investigation, a VA Form 27-3537a,
issued in April 1992, asked that a thorough investigation be
undertaken to include interviews with neighbor and other
disinterested persons, obtaining tax returns from since 1973
and rental contracts, etc. and that all leads should be
followed-up to determine whether a valid common-law marriage
had developed after the 1973 divorce. Specifically, those
who had previously submitted statements in support of a
“common law” relationship were to be interviewed.
In a VA Form 21-4138, dated March 22, “1993” but received by
the VARO in March 1992, the appellant stated that the divorce
petition, a copy of which she submitted (which appears to be
an unsigned draft of the May 1973 Judgment), and stating that
the document had not been filed until August 23, 1984.
However, several signed, notarized and certified copies of
the divorce judgment (which in substance is a duplicate of
the unsigned draft provided by the appellant in 1992) are
also now of record, showing that the appellant had been
granted a divorce from the veteran, in the District Court,
57th Judicial District, Bexar County, Texas, on May 23, 1973;
that document also refers to them as having had a child, V,
born in 1970, whose custody was given to the appellant. The
document has been certified by the Court Clerk as having been
faithfully copied from the official files of that Court. A
specific date of filing is not of record. The document
refers to requirements of residence, etc. having been
fulfilled, the bonds of matrimony were thereby dissolved and
that the (appellant) was divorced from the (veteran).
The final report of the field investigation is of record,
dated in January 1993. No information was forthcoming from
repeated visits and requested for contact at the veteran’s
last known address. At the two apartment complexes,
[redacted] and [redacted], there were no copies of lease
agreements for the pertinent periods in question and rental
agents thereat had not been cognizant of what had transpired
under previous owners.
The report of the interview with the appellant in October
1992 is of record. She specifically insisted, [when the
interviewer stated that the investigation was being
undertaken with regard a common law marriage], that her claim
relied upon the fact that the final divorce decree had not
become finalized at the time of the veteran’s death and thus
she should be considered the widow of the veteran without
regard to any common law relationship. She stated that she
had already submitted copies of lease agreements to the VA.
She said she had no copies of any income tax forms for the
period after 1973. She reported that she and the veteran had
filed separate income tax forms, that the utility bills were
in her name, and that they had separate bank accounts. She
stated that the veteran lived in Houston during the week but
went to San Antonio during the weekends. The interviewer
later visited the Courthouse and obtained the certified
finalized divorce decree.
A report of an interview with the appellant’s mother is of
record from October 1992; it was accomplished 1/2 hour after
that with the appellant and at the same address. She stated
that the veteran and her daughter had never obtained a
divorce, and reiterated that they lived together on weekends
until he died.
The investigator interviewed MF later in October 1992 in San
Antonio, one of the persons who had provided an affidavit
previously to the effect that the veteran and the appellant
acted as if they were married. On inquiry, she stated that
she had been a casual friend of the appellant from 1972
through 1987, and that they had sold real estate together,
but that she had not known her well. She did not recall what
she had said specifically in her prior statement, but
indicated that even though they had not said they were
married, they acted like they were a couple when she saw
them. Mrs. SF, who had also provided a prior statement, was
interviewed in San Antonio in October 1992. She said she had
known the veteran and the appellant because she had taught
their daughter, V, in 5th grade, from 1978-9, and that during
that time, they attended school functions together and she
assumed they were married. She had not kept in touch with
them. An interview was undertaken in San Antonio in October
1992 with SW, who had also given a previous statement. She
had known the appellant and the veteran from 1975 to 1979 or
so; that she had sold real estate with the appellant but that
they were not close friends; that she did not know why the
appellant put up with him, because although SW knew they were
divorced, he stayed with her on weekends. She said she and
her husband would play bridge with them on occasion; she
opined that they had not set a very good example for their
daughter, V.
Also of record are certain documents relating to actions
filed by the appellant against the veteran’s estate. One
deposition from the veteran’s daughter by another wife, NKP
is, in pertinent part, to the effect that she had first met
EF in January 1980 when she accompanied NKP’s father to NKP’s
wedding; that the veteran and EF were married in July 1980;
that her father had found out he had cancer in 1977, but
after several procedures he went into remission; that they
lived at [redacted] after their marriage, and that she saw
them there once or twice a week. She indicated that this had
been the home that E had owned prior to the marriage. She
last saw E a couple of weeks after her father had died and
that at that time, she was not bedridden but she did not know
how old she was and had never discussed her father’s health
with her, nor did she know about his business dealings. She
knew that a prenuptial agreement had been drawn up between
the veteran and E; that her father had never mentioned either
the appellant or a daughter, V, which he had had with the
appellant at any time during his lifetime; that she had never
had contact with the appellant or met her until once in 1966;
and had seen E regularly; that E and the veteran had wedding
rings, called each other husband and wife and that she knew
from having been told by her father that E and her father had
been married by the same justice of the peace who had married
her and her own husband. She stated that her father had not
been in a terminal state until just prior to his death, and
that during virtually the entire post 1979-1980 period he was
fully aware and cognizant.
In a VA Form 1-9, received in July 1993, the appellant
referred to documents including medical records showing that
the veteran had had prostate cancer treatment in 1979 and
again after the cancer had spread to the veteran’s brain
shortly before his death; and again alleged that the divorce
degree was filed shortly before his death and was not
finalized; that his alleged wife, E, was using another man’s
name (i.e., telephone book records); citing regulations that
require the spouse’s statement to be accepted as to the
reason for separation; referring to a letter from Human
Services Center in Texas to the effect that V had not been
subject of a suit affecting the parent-child relationship in
any judgment after January 1974 (which the appellant argued
was tantamount to a statement that no divorce had been
filed); that an attempt had been made to have EFJ answer
questions but that it had been stated that she was too frail,
and had since died. Documents from attorneys and others were
later submitted in 1993 and 1994 referring to extensive court
filings with regard other suits, and stating that briefs were
to be filed most probably in April 1993. The appellant has
not since submitted any documentation of any Court order or
finding which would impact on her pending VA claim. There is
of record a listing from the Court in 1992 and since with
regard the apparent filing (as completed actions) of
documents from actions in October 1984. It is shown that an
incorrect docket number had been typed on a portion of an
unidentified Probate document rendered under the veteran’s
estate, and this was corrected. It is not shown that this
has any substantive relevance to the determination in this
case.
Analysis
From the outset, the Board notes that the variations on
“facts”, particularly dates given by the parties in this
case, are often remarkable. The veteran indeed had a
somewhat complicated marital and family history. However,
the decision in this case rests on a relatively narrow
portion of his life and is fairly clearly delineated both in
fact and time frames. The Board is satisfied that those
dates and other facts which are relevant to an equitable
disposition of the specific issues in this case are not in
question. It is also noteworthy that the woman whom the
veteran married in 1980, E. has now died and that there is no
pending contested claim for these benefits.
First, a comprehensive review of the extensive documentation
of record shows that for whatever reasons, the nature of
which need not be speculated upon, the appellant, supported
by the testimony of her mother and daughter by the veteran,
has recently changed the course of her argument, i.e., to the
effect that her divorce from the veteran was never finalized.
However, the signed, filed and certified court documents are
clearly and unequivocally to the contrary. The appellant was
granted a final divorce from the veteran in May 1973.
Thus, the issue becomes whether there was established a valid
common law marriage thereafter, as Texas is a State which
recognizes such, or whether a deemed valid marriage may have
been otherwise established. As for the issue of a common law
relationship, the evidence of record including testimony and
affidavits from people in the community, tends to show that
once the divorce was final in 1973, the veteran lived in one
city and the appellant lived in another. It is also clear
that the veteran kept some of his belongings in the
appellant’s residence, and spent some time with her on
weekends, and apparently performed some parental-like
activities at least prior to 1979 or 1980 with regard a
daughter, V, who was born in 1970. It is noted that V’s
birth certificate, on which the appellant was the informant,
identifies the veteran as the child’s father and she was
designated in the 1973 divorce decree. Nonetheless, the
credible evidence of record, including the testimony of those
who previously provided affidavit evidence, tends to show
that the veteran’s familial participation was limited as his
daughter grew beyond gradeschool, and particularly with and
proportionately to the passage of time and intercurrent
relationships and factors. The appellant has acknowledged
that they did not share tax returns, bank accounts or
expenses such as utilities. Although she has recently
claimed that she gave the VA copies of leases showing a joint
relationship therein in the interim period, the other
evidence of record does not support that contention. Some of
her other recent interpretations of other evidence and
documents in the file are not credible or consistent with the
documentation itself. Whether the veteran made some trips
from Houston where he lived and worked, to San Antonio, where
the appellant lived and worked, in the period after the
divorce, from 1973 to 1980, may probably be stipulated.
However, while they apparently did not go to any lengths to
tell folks in the community that they were in fact divorced,
neither is there any credible evidence of record to show that
there was any attempt to hold themselves as husband and wife
other than to “keep up appearances” for events such as their
child’s school activities. Parenthetically, it is noteworthy
that notwithstanding apparently extensive challenges by the
appellant, the absence of evidence from her or the court
system tends to sustain that her arguments have not been
otherwise persuasive and that the State of Texas has not
found to the contrary. The Board does not find it unusual
that the appellant would continue to have some credit cards
in the name of “Mrs. J”, which she herself paid; or that she
continued to call herself “Mrs. J”; in fact, there is no
viable last name alternative of which the Board is apprised.
Particularly after 1979 or 1980, and until his death in 1984,
the evidence shows that the veteran went to considerable
lengths to identify and care for who was apparently then his
wife, E, and his three children by D. That he and E lived in
the home previously owned by her deceased husband, “E”, and
that the telephones remained listed in his (not her) name as
well as the veteran’s is neither peculiar or relevant. A
detailed statement provided by his attorney as to his
affairs, as well as a copy of his last Will in 1980, in
association with the 1984 beneficiary designations, and all
other credible evidence of record, all tend to support the
argument that there was no sign of a marital relationship
between the veteran and the appellant at the time of his
death. While the veteran’s intent is not all-controlling,
his intent appears clear nonetheless, and it is certainly
some indication of whether the parties thought of themselves
as being in a marital relationship. Furthermore, contrary to
the appellant’s contentions, it is not shown that he was
incapacitated by his ill-health as to be unable to function
or formulate ideas and plans. In that regard, whether or not
he told her in 1979 or so that he was leaving merely
temporarily to get his affairs in order because of his
cancer, it is clear that his cancer was in considerable
remission thereafter until shortly before his death, and that
getting his affairs in order included significant, reasonable
and consistent changes in his life including, evidently, a
new wife, new will, etc..
There is no sound, justifiable, credible basis for finding
that the appellant was the veteran’s spouse at the time of
his death. Thus, she may not be recognized as the surviving
spouse for VA benefits. In light of the finding that the
evidence does not support the conclusion that the appellant
and the veteran had a valid marriage at the time of the
veteran’s death, the provisions of whether a marriage may be
deemed on the basis of lack of knowledge of a legal
impediment are inapplicable. See 38 U.S.C.A. § 103(a).
ORDER
The appellant may not be recognized as the veteran’s
surviving spouse for VA benefits; the appeal is denied.
D. C. SPICKLER
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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